SHP635

IN THE MATTER OF AN ARBITRATION

 

 

BETWEEN

 

 

CANADIAN PACIFIC – MECHANICAL SERVICES

(the “Company”)

 

 

AND

 

 

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA)

(the “Union”)

 

 

RE: GRIEVANCE OF LABOURER CHUNRONG WANG – 15 DEMERITS

 

 

 

Sole Arbitrator:                      Michel G. Picher

 

 

 

Appearing For The Union:

            Brian McDonagh                 – National Representative

            Guy Lemyre                          – Vice-President, Eastern Region

            Denis Lamontagne              – Toronto Diesel Shop Chairman

            Derrick James                       – Car Shop Chairman

            Rose Chunrong Wang       – Grievor

 

 

Appearing For The Company:

            Brianne Deacon                  – Labour Relations Officer

            Len Wormsbecker                – Manager, Labour Relations

            John Dubrenil                      – Process Manager, Mechanical

            John Lawley                         – Process Manager

            Ernest Loiselle                     – Operating Coordinator

            Wade Rushton                     – Process Coordinator

            Mike Hughes                        – Railcar Mechanic, Relief CEM Trainer

 

 

A hearing in this matter was held in Toronto on December 5, 2008

 

AWARD

 

            This arbitration concerns the assessment of fifteen demerits Chunrong (Rose) Wage of the Toronto Diesel Facility. The fifteen demerits were assessed against her for sleeping while on duty, as reflected in a Form 104 notification dated July 31, 2007.

 

            The statement of fact and issue provided to the Arbitrator by the Union at the hearing reads as follows:

STATEMENT OF FACT & ISSUE

DISPUTE:

            Labourer Chunrong (Rose) Wang’s record being debited 15 demerits          sleeping while on duty on July 19th, 2007.

 

 

STATEMENT OF FACT:

According to the Company Discipline Form issued June 31, 2007, Labourer Chunrong (Rose) Wang’s record was debited 15 demerit marks for:

 

            …sleeping while on duty on July 19th, 2007 at the Toronto Yard Diesel        Shop Agincourt Yard

 

 

STATEMENT OF ISSUE:

It is the contention of the Union that:

 

            The Company sis not establish wrong doing on Labourer Chunrong (rose) Wang’s behalf sufficient to give the Company cause to discipline her:

 

            - Labourer Chunrong (Rose) Wang was treated in an arbitrary,        discriminatory and excessive manner in regard to the 15 demerits debited        against her record;

 

Therefore, with regard to the foregoing, it is the position of the Union that the discipline of 15 demerits debited against Labourer Chunrong (Rose) Wang’s record should be removed from her record.

 

Should the Arbitrator diminish Labourer Chunrong (Rose) Wang’s demerits below the required sixty (60) demerits, it is the position of the Union that Labourer Chunrong (Rose) Wang should be reinstated to employment forthwith, with full redress for all lost wages, benefits and losses incurred as a result of her dismissal, including, but not limited to, interest on any moneys owing.

 

The Company denies the Union’s contentions and claim.

 

            It is not disputed that on July 19, 2007, during the course of her tour of duty, the grievor was observed by fellow employee Labourer Deann Goldsworthy, while the latter was in the process of cleaning the women’s change room. Ms. Goldsworthy saw the grievor sitting at a table, with her head down, resting on a roll of paper towel on the table, along with both of her arms. Ms. Goldsworthy noted that the grievor’s eyes were closed and concluded that she was in fact sleeping, as she did not move during the cleaning operations.

 

            It appears that when Ms. Goldsworthy complained to Process Coordinator Wade Rushton that she could not clean the table in the room because the grievor appeared to be asleep on it, Mr. Rushton and Process Manager John Lawley attended at the women’s change room where they observed the grievor in the same position as described above. According to their account they stood in the room for approximately a minute, speaking to each other in a conversational tone, while the grievor appeared to be asleep. After approximately one minute she opened her eyes and apologized to the two supervisors, apparently indicating that her boots were wet and that she was tired. She then returned to her duties.

 

            During the course of the subsequent investigation, when a statement was obtained from Ms. Wang, she denied having been asleep. According to her explanation she went to the women’s change room during her break and while there she suffered strong menstrual cramps, which necessitated her resting at the table as she did. She denies that she was asleep at any time.

 

            Having regard to all of the evidence, the Arbitrator finds the grievor’s explanation difficult to accept, even if it may be true that she had experienced some menstrual discomfort. Three individuals observed her at close range, all of them forming the opinion that she was asleep. The Arbitrator finds that evidence to be the more plausible and credible. Alternatively, even on the grievor’s own account of events, if in fact she removed herself from her workplace for an extended period of time by reason of illness or a physical problem, she plainly failed to advise any supervisor of her condition, nor did she seek to obtain the proper permission to so absent herself. On either basis, I am satisfied that she made herself liable to discipline.

 

            The Arbitrator is satisfied that discipline was warranted in the circumstances and that the fifteen demerits assessed against the grievor were within the appropriate range of disciplinary response, and that that result should not be disturbed. For these reasons the grievance must be dismissed.

 

 

 

 

 

 

 

 

Dated at Ottawa this 17th day of December 2008.

 

 

_________________________________

MICHEL G. PICHER

ARBITRATOR